Legal Cooperation in Criminal Matters Meeting Place
Le Forum de l'assistance judiciaire en matière criminelle
Foro de Asistencia Judicial en Materia Penal
Fórum de Assistência Jurídica em Matéria Penal
BREAKING DOWN THE BARRIERS:
INTER-NATIONAL COOPERATION IN COMBATING TRANSNATIONAL CRIME
Note: Any views expressed are those of the author and are not attributable to any government or organization.
With advances in technology, and the ease of global travel, the world we live in has become, in many ways, as Canadian author Marshall McLuhan predicted "a global village". This has had a dramatic impact on many aspects of life and society and law enforcement is no exception.
The technological explosion and the growth of transnational organized crime and the response of the international community to it, has created many new challenges, not the least of which is the impact on the jobs of law enforcement authorities.
In a 1989 case, United States of America v. Cotroni, the Supreme Court of Canada, made the following statement:
The challenge for law enforcement authorities in every nation is that sovereignty, a fundamental principle which grounds the relations of states, is also a major tool in the armoury of the criminal element in our societies. Criminals depend heavily upon the barriers of sovereignty to shield themselves and evidence of their crimes from detection. Organizations which orchestrate transnational crime and which then disperse and conceal the proceeds of their illicit activities the world over, have no regard for national borders. In fact, by structuring their organisations to span borders, they are better able to protect their interests and organisations. They are positioned to take advantage of the differences between legal systems, the clash of bureaucracies, the protection of sovereignty, and, at many times, the complete incapacity of nations to work together to overcome their differences.
International cooperation in criminal matters, means such as mutual assistance and extradition are instruments which can be used to overcome the barriers of sovereignty and allow the international community to "fight back". Both extradition and mutual legal assistance are 'about' countries building bridges to overcome the differences in their legal systems and assisting each other in law enforcement matters.
The result is that the rare case where assistance from another country was necessary to gather evidence or locate and return an accused is no longer rare. More and more successful prosecution, particularly of drug economic Crime and money laundering cases, is dependent upon the assistance and cooperation of other states. International cooperation in criminal matters has on a practical level, come of age.
The purpose of this paper is to provide a brief overview of the world of international cooperation as it relates to prosecutors and other law enforcement authorities. The intent is to give a brief "snapshot" of where we have been, where we are and the future challenges that we face.
International cooperation in criminal matters encompasses many measures including extradition, mutual assistance, transfer of sentenced prisoners, transfer of proceedings, and cooperation in the restraint and forfeiture of proceeds of crime.
This paper will focus on three of the most common aspects of international cooperation, those which most directly impact on the work of prosecutors - extradition, mutual assistance and cooperation in the restraint and forfeiture of proceeds of crime.
II PURSUING THE SUSPECT - EXTRADITION
Extradition is the surrender by one state, at the request of another, of a person who is accused or has been convicted of a crime committed within the jurisdiction of the requesting state.3
Extradition is the best known and certainly the oldest component of international cooperation in criminal matters. It is a concept which originated in ancient societies such as the Egyptian, Chinese, Chaldean, and Assyro-Babylonian.4 As is often noted, the first recorded extradition treaty dates from circa 1280 B.C. when Ramses II, Pharaoh of Egypt, signed a peace treaty with the Hittites which expressly provided for the return of persons sought by each sovereign, who had taken refuge on the other's territory.5
While extradition has long been a component of the relations between states, have its role and purpose has been altered radically through the ages. In ancient times and in fact up until the early 1800's, extradition was directed almost exclusively to the return of fugitives sought for political or religious offences. Extradition was viewed as a means to protect the political order of states.
In modern times, particularly the last hundred years, the focus of extradition has changed completely to common serious crime, which in many ways has replaced political offences as a major challenge to the stability of nations. In fact, quite ironically, political offences, the original focus of extradition are now generally excluded from extradition regimes.
Despite its long history and ancient roots, the practice of extradition has seen its most radical development in the last 50 years. Driven by the intersection of amazing advancements in global travel and the rise of criminality spanning borders, extradition, particularly between countries with vastly different legal systems, has changed substantially. On the eve of the millennium, the further enhancement of extradition relations and practices is a priority, for many countries and a number of international organisations.6
2) The basis for extradition
The first issue a prosecutor or investigating judge faces when a suspected or accused person is one of their cases or dossiers is located in a foreign state, is whether it is even possible to have that person extradited to face trial.
While historically controversial, it is the generally accepted view today, at international law, that there is neither a legal nor moral duty upon states to extradite, in the absence of a specific binding agreement to that effect.7 Because of this principle, many states, in particular those of a common law tradition will not extradite in the absence of treaty. While civil law countries are not generally as restricted in principle to treaty, based extradition, they too have entered into such arrangements, particularly with states whose domestic law mandated such a relationship.
The result is that historically and even today, most countries have at least some bilateral extradition treaties and this remains the predominant and still, for many states, the exclusive basis for extradition.8 However, considering the ever-expanding list of nations, it is safe to say that the number of bilateral extradition treaties is clearly insufficient to address the growing need for extradition relations. And it is this reality, which has led to a trend toward alternative bases for extradition. The following is a brief overview of the network of instruments that ground modern extradition, as well as alternative approaches to treaty based relations.
As noted, many states have traditionally based their extradition relationships on bilateral treaties. Even today, there continues to exist a vast web of bilateral extradition instruments particularly flowing from the commitment of the United Kingdom, other Commonwealth States and the United States to treaty-based relations.
By example, in the 1800's, the United Kingdom negotiated several extradition treaties which were applicable to many of its realms and territories. For many years, even as those colonies attained independence, they continued to rely on the old Imperial treaties for extradition relationships, with many states. Some still do so today. Similarly, the United States has long required a treaty for extradition and thus has developed a broad network of bilateral instruments to govern extradition relations.
While other legal systems may not have evidenced the same strong commitment to bilateral treaty, relations, many non - common law states have a number of bilateral extradition treaties with other states. The result is that bilateral treaties still dominate extradition practice, although there is an increasing tendency for states to consider alternatives because of the practical and political realities, and the problems of negotiating inPidual instruments to govern extradition relations with an ever-expanding world community.
With the inherent difficulties of negotiating bilateral instruments and yet the clear advantages of having some form of instrument upon which to ground extradition relations, there has been increasing resort, in the second half of the twentieth century, to regional agreements and schemes for extradition. These have become a popular alternative for many states.
While some arrangements have historic routes, for example, rendition amongst British possessions, such agreements and schemes saw a particular period of growth in the 1950's and 60's. Generally the common bond for these instruments is the geographical location of the participant states but there are also those which are dependent upon common legal traditions. In some instances they reflect both geography and common legal tradition.
The following is a brief survey of existing regional agreements and schemes:
i) The European Convention on Extradition9
Perhaps the best success story in extradition, the Convention signed December 13,1957, in force April 18, 1960, has served as an important instrument for harmonization extradition relations and practice amongst European states. The Convention serves as an actual basis for extradition and is the most commonly used extradition instrument within Europe. As one of the first multilateral instruments for extradition, it reflects many of the fundamental principles now recognised as general concepts adhered to by most states in extradition practice.
ii) Commonwealth Scheme10
Commonwealth states, from the legal tradition of the common law, have adopted an alternate approach in the form of the Commonwealth Scheme for Rendition. The scheme has its roots in the system for rendition between British possessions that was governed originally by an 1843 Imperial statute11 and subsequently, the 1881 Fugitive Offenders Act.12
The scheme was adopted at the 1966 Meeting of Commonwealth Law Ministers, with subsequent amendments in 1986 and 1990. Unlike the European Convention, the scheme is not an actual instrument for rendition. Rather it is a set of agreed recommendations, intended to guide Commonwealth governments in regulating their rendition relations with other Commonwealth states. Generally the scheme will be implemented within the relevant states through legislation and administrative action. The goal of the scheme is not to prescribe uniform legislation but rather to encourage the adoption of national legislation and practices amongst member states which will afford a high level of cooperation.13
iii) The Inter - American Conventions
There is a long and complex history of inter- American extradition conventions. Beginning in 1899 with the Montevideo convention, subsequent conventions were adopted in 1911 and 1928. In 1933 the Second Montevideo treaty was adopted, which was subsequently revised in 1940 and 1957.14 On February 7, 1973 the Organization of American States proposed a new Draft Inter- American Convention on Extradition.
iv) The Benelux Extradition Convention15
Adopted by Belgium, Luxembourg and the Netherlands on June 27,1962 the Convention on Extradition and Judicial Assistance in Penal Matters is an excellent example of how states which are closely related and limited in number will tend to develop more permissive relations with respect to extradition. While mirroring in many, respects the provisions of the European Convention, some of the substantive articles in this Convention clearly reflect close ties of the state parties.16
v) The Nordic States Scheme17
In 1962, Denmark, Finland, Iceland, Norway, and Sweden adopted the Nordic treaty for extradition. Similar to the Benelux agreement it reflects the close relations of the member states. Of particular note in the agreement is the recognition of "juridical equality " of these states' citizens.
v) The Arab League Extradition Agreement
The Convention was approved by the Council of the League of Arab States on September 14,1952 and was signed by Egypt, Iraq, Jordan, Lebanon, Saudi Arabia, and Syria. However only Egypt, Jordan and Saudi Arabia have ratified it and thus it has been in force since August 24,1958 but only in relation to these three states. The Convention, while a "stand alone" basis for extradition, contemplates the existence of bilateral arrangements between state parties.
In 1961, twelve of France's fourteen former Equatorial and West African colonies formed the Union Africaine et Malagache. On September 12 of that year these states signed a convention on judicial cooperation at Tananarive.18
On August 6,1994 sixteen member states of the Economic Community of West African States signed a convention on extradition which will enter into force upon ratification of nine signatory states.
In the mid 20th century, in the face of crimes with effects of international proportion, a new approach to extradition developed in the form of multilateral conventions, directed at particular crimes, with articles relating to extradition.
The earliest of such conventions, the Geneva Conventions19, which provide for basic principles of humanitarian law in the context of armed conflict, placed an obligation on states to either prosecute or extradite alleged offenders, applying the principle of aut dedere aut judicare. Thus state parties to the convention are obligated to bring alleged offenders before their courts or hand them over to be tried by another party.
The subsequent Genocide Convention20 while imposing an obligation on a territorial state to Prosecute allegations of genocide, does not impose the aut dedere aut judicare principle. However, Article VII of the Convention does provide that genocide and other acts covered by the Convention shall not be considered "political offences" for the purpose of extradition.
The 1971 Hague Convention for the Suppression of the Unlawful Seizure of Aircraft21, was the first of a series of conventions, often described as "anti terrorism" agreements, which contained detailed articles on extradition. The convention and several others which have followed obligate states to take jurisdiction over the relevant convention offences and in the face of allegations, extradite the person or submit the matter to competent authorities for the purpose of prosecution. In addition the Convention provides:
The advent of these multilateral conventions has meant an expansion of the base for extradition as between many states, at least with respect to these particular offences.
The coming into force of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and psychotropic Substances23 (1988 Drug Convention) brought a significant advancement in extradition with respect to drug trafficking and proceeds of drug trafficking offences. Article 6 of the convention is dedicated to extradition and, inter alia, imposes a prosecute or extradite obligation on states and mirrors the deeming provisions found in the earlier "anti-terrorism" conventions. With now over 130 state parties to this Convention, there exists an extensive basis for extradition in such matters.
The negotiation of bilateral, regional and multilateral treaties is a time consuming and resource intensive exercise. As well, it is simply unrealistic for any state to have a complete set of extradition instruments applicable to every nation in the world. For that reason, increasingly countries are considering and adopting an alternative approach; extradition without treaty.
Most commonly, such extradition is based on domestic legislation. There are some countries, Japan being an example, which adopt this as almost the exclusive approach to extradition, extraditing without treaty, on the basis of national legislation which imposes essentially a condition of reciprocity. Other countries have adopted a blended system. For example, while in Canada an extradition treaty, is generally a pre-requisite to extradition, the Extradition Act permits extradition, without treaty where the requesting country has been designated under its legislation prior to the commission of the alleged offence for which extradition is sought. In addition, Canada has always by virtue of its Fugitive Offenders Act, rendited to Commonwealth states which recognize the Queen as head of state, without necessity for treaty.24
The new extradition legislation in the United Kingdom contemplates extradition on the basis of existing bilateral treaty, general arrangement (new bilateral or multilateral treaties e.g. the European convention), specific arrangements (case specific, ad hoc arrangements) and designation of Commonwealth countries.25
While approaches and models vary, the concept is essentially the same. One of the central advantages of this approach to extradition is that it provides for a broader base for extradition, placing countries in a much better position to respond to the particular situations that may arise, where extradition is a necessity. It is interesting to note that the United Nations expert working group which recently considered extradition, recommended that countries consider the adoption of extradition regimes which allow for alternatives base for extradition to permit maximum flexibility.26
On the recommendation of the Eighth Congress, in 1990 the United Nations General Assembly adopted the Model Treaty on Extradition.27 While it is not an actual instrument for extradition, it is an important document which can be used by states in the development of bilateral or multilateral extradition instruments. The Model, along with the manual28 prepared as a guide for it, provide a detailed outline of the provisions of an extradition treaty and how best to implement the same.
While there is much discussion and debate in the international community about the benefits and drawbacks of these different approaches to grounding extradition, the good news for prosecutors and other law enforcement practitioners is that there are simply more possibilities. Today, it is more likely that a prosecutor will find some basis for extradition, than existed 15 or 20 years ago. In that simple fact, there is progress.
3) Extraditable offences
The other area of extradition which has seen considerable progress is the extension of the application of extradition treaties, through the expanded definition and process for determination of "extraditable offences". The progress has been twofold.
Most extradition treaties developed in the late 1800's to early - mid 1900's, defined extradition crimes by reference to a list of offences. The conduct revolved had to be a crime in both states, which constituted one of the offences listed in the relevant treaty. The problems with that approach are legendary. New crimes would develop and the treaties, generally stagnant for many years, would not cover them. Terminology would change making it difficult to bring the alleged offences within the treaty list.
The "new" approach to extradition instruments, which is now widely accepted in the international community, eliminates the list approach and substitutes a conduct and penalty test i.e. the conduct involved must constitute an offence punishable in both states, by some prescribed period of incarceration, as defined by the two states.
For prosecutors, who have struggled to bring criminal conduct within antiquated lists, this is a welcome relief.
The second development which parallels the first, is the employment of a relaxed test for dual criminality. The concept of dual criminality is a fundamental aspect of modern extradition law. For extradition to be possible the act in question must be a crime in both the requesting and requested states. While a seemingly simple requirement, in practice, establishing dual criminality can prove to be one of the most challenging issues in an extradition case. The problems flow from the technical differences in how states define, name and prove criminal offences. For example, what may be called theft in one state, may be larceny in another. While the conduct of the alleged offender may include all of the elements of fraud, as it is defined in both states, the definition of the offences might differ.
The result is that extradition cases have failed because of a technical approach to dual criminality. However, the modern test for dual criminality, incorporated in many extradition treaties and instruments, focuses not on technical terms or definitions but on the substantive underlying conduct.29 Thus, the test is whether the conduct alleged against the fugitive would constitute a criminal offence in the requested state, regardless of whether the offences in the two states carry a different name or have different elements to them. This development has greatly simplified and improved extradition practices and constitutes an excellent example of effectively, bridging the differences between legal systems.
4) Practical issues in extradition for prosecutors
The practice of extradition is replete with problems, from the simple question of proper channels of communication, to the complex question of the proper role of political offence in modern day extradition. It is not possible to review this myriad of issues in a global overview of international cooperation.
Instead, it is perhaps most useful to focus on two issues which most often impact on the practice of extradition from a prosecutor or investigating judge's perspective. I would identify, those as:
Any criminal law authority seeking the extradition of an accused person for trial, after concluding that there is a basic extradition relationship between the states involved, will face the fundamental question of what material must be provided to the foreign state in support of the request.
While a seemingly simplistic question, this issue has been and remains a critical problem in extradition, particularly, extradition as between civil and common law countries.
For civil law states, the issuance of a warrant of arrest within a requesting state, evidences that a judicial authority, within that state, has determined that there is sufficient evidence in the case. On that basis, the authorities in the requested state should be able to accept and rely on that determination and not look behind it to reassess the underlying basis of the decision.
Traditionally, common law states have required, in addition to the warrant, the submission of evidence by the foreign state, sufficient to meet a prescribed domestic standard. Many such states have also demanded that the evidence be adduced in a form consistent with the law of the requested state, before extradition will be granted.
Meeting those demands for evidence often proves to be one of the greatest challenges in the extradition process. The problem is simple, the solution is not. When evidence must be adduced to meet an unknown standard, in a completely foreign format, it can prove to be an insurmountable hurdle to extradition. To meet this burden the requesting authorities are forced to generate an entirely separate package of evidence, that they would not normally produce, which cannot be used in any ultimate domestic trial process, against the particular accused. For the investigating magistrate or prosecutor in a non -- common law state, the requirement for evidence is unquestionably the major challenge in pursuing the extradition of a suspect.
Historically, the result has been that many fugitives have escaped justice or found safe haven because it was impossible for countries to generate the level of material required, in the form sought. And the problem is not solely an irritant as between systems of different legal tradition, but can arise between countries with the same general traditions but differing rules of evidence and differing approaches to extradition. It is no understatement to identify evidence as the most significant issue for prosecutors and in many instances the most significant issue for the extradition relations between many states.
Fortunately, much progress has been made in this area. Several common law countries have eliminated the requirement for evidence in prescribed circumstances.30 Others have adopted a lower threshold of proof that must be met and will accept evidence adduced in a summary form, without requiring that it meet the normal evidentiary standards of the requested state.31 At the same time, there remain a number of common law states that have yet to modify their process.
To the extent that there remain states which require the submission of evidence, in a form admissible under domestic law, one of the central challenges in extradition is to develop ways and means of reducing the detrimental effect of evidentiary requirements. One critical component of the solution is enhanced communication between the relevant authorities in the different states that will increase understanding and knowledge about the demands of Perse legal systems. Undoubtedly, in this area the International Association of Prosecutors (IAP) can play an important role.
In many states, particularly of civil law tradition, by constitutional, law or practice, the extradition of nations is prohibited. In most instances, countries which do not extradite nationals, will have domestic jurisdiction to prosecute nationals for offences committed in the territory of a foreign state.
Thus, many extradition treaties reflect the principle that, where extradition is refused on the basis of nationality, the case should be referred to competent authorities in the requested state with a view to prosecution.32 These articles reflect the aut dedere aut judicare principle and are intended to ensure that a criminal will not escape and are intended to ensure that a criminal will not escape justice and find safe haven on the basis of nationality.
However, it is increasingly evident, that domestic prosecution of offences committed outside the country is a process replete with problems. The following description is taken from the report of the United Nations expert working group on extradition:
Because of the litany, of practical problems, it is no longer possible for states to ignore the growing problems associated to the non - extradition of nationals.
And this reality has led some countries to critically examine their extradition practice in relation to nationals. Short of abolishing the prohibition, other alternatives are being developed. One encouraging example can be found in the Treaty on Extradition between the Netherlands and the United States. In this treaty, both parties have agreed to the extradition of nationals provided that the two states are also bound by a prisoner transfer treaty, which would allow for the return of the person for service of any sentence imposed. Such an approach and variations thereof"34 have been recommended in various international fora.35
However, it is not realistic to expect dramatic change in domestic policies on the issue of non-extradition of nationals overnight. In many instances, the principles are deeply entrenched and in some countries, are constitutionally enshrined. Thus, practitioners will continue to face situations where the extradition of nationals will not be possible. For those cases, there are many challenges for prosecutors, who wish to see the alleged offender brought before a court, for an effective trial. Initially, the prosecutor in the requesting state will have to make a decision whether to press for prosecution in the foreign state or await an opportunity for circumstances where extradition might be possible (e.g. if the fugitive travels to another state). If prosecution is to be pursued in the foreign state, than prosecutors in both Jurisdictions will have to consider how best to ensure the transmission of evidence to the prosecuting state. And as long as the non- extradition of nationals remains a reality, it will be critical that prosecutors meet the challenges in these cases. For without solutions that bring the fugitives to justice in some forum, safe haven for nationals will be the reality.
III PURSUING TI-IE EVIDENCE - MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Every justice system in the world requires some form of evidence for use in the adjudication of criminal culpability for an alleged offence. Whatever the system for determining guilt or innocence, whether it be free evaluation of all relevant information or consideration of only that which meets specified rules of accessibility, the criminal justice process functions on the basis of an assessment of evidence. Evidence than is the focus point for any and all prosecutors. It is what they need to do their jobs.
Mutual assistance36 in criminal matters is a process by which states seek and provide assistance in gathering evidence for use in criminal cases.
In earlier times, most prosecutors would go through their entire career, without ever having to obtain evidence from outside national borders.
Last year, there were literally thousands of requests transmitted between states seeking assistance in evidence gathering. In today's world, most prosecutors will be hard pressed not to have at least one case where they will have to obtain evidence from a foreign state, for use in a prosecution. And it is for that reason, that mutual assistance has become the fastest growing business in the criminal Justice field.
Mutual assistance as a means of cooperation has advanced most significantly over the last decade.
Countries have long assisted each other in gathering information and evidence for criminal investigations and prosecutions. There are well established police to police channels through which much essential information has been and continues to be shared. These channels range from direct relationships between police officers and police forces, to the posting of police liaison personnel in foreign states, to the auspices of Interpol. All of these measures remain critical to cooperation in evidence gathering and have not been replaced by the more formal process of mutual assistance.
But the reality is that there are types of assistance which cannot be provided between states, through police or informal channels. The most obvious is where the type of assistance sought will require resort to the legal process within the requested state; where some type of judicial order or compulsory measure must be applied to produce the desired information or evidence, in an acceptable form.
For example, where a country is seeking the production of bank records or the search of a residence, there is need for a judicial process through which the appropriate authorization can be obtained.
For many years, states were required to rely entirely upon traditional letters rogatory, submitted through diplomatic channels, to gain access to such evidence. However, in our modern age, this method was insufficient to meet the growing demand for speedy and effective assistance, in evidence gathering.
Letters rogatory did not provide for the scope of assistance required, nor were they efficient enough to allow for the production of the evidence, within a reasonable period of time. As well, because of fundamental differences between investigative authorities and process in civil and common law states, letters rogatory were in many instances ineffective as between states of a different legal tradition.
In the second half of the twentieth century, the need for alternative methods of evidentiary assistance was apparent. The identifiable gaps, combined with the rise of terrorism and transnational organized crime, combined to spur the development of mutual assistance in criminal matters, a new concept for cooperation in evidence gathering. Mutual assistance was "an idea whose time had come".
3) The features of mutual assistance
Mutual assistance in criminal matters is a mechanism of cooperation which allows for a wide range of assistance between states in the production of evidence, in a direct and efficient manner. Generally rendered on the basis of bilateral treaty or agreement or multilateral convention37 mutual assistance provides a means for one state to obtain evidence from another state for use in a criminal investigation/prosecution.
One of the major advantages of this form of cooperation is that it covers a broad range of assistance including inter alia, taking evidence or statements of persons, search and seizure, the provision of documents or evidentiary items, the service of documents, and the temporary transfer of persons to assist an investigation or appear as a witness. As well, assistance can be rendered at any state of a criminal process from investigation to appeal.
Generally mutual assistance can be rendered directly between competent authorities in the two states, often Justice Ministries. This is one of the features of mutual assistance which makes it an effective and efficient mechanism of cooperation; the direct channelling of requests without necessity, for use of diplomatic or other channels.
4) The instruments of cooperation
Over the last decade great strides have been made in the development of a framework of instruments for the rendering of assistance.
The first significant instrument for mutual assistance was the European Convention on Mutual Assistance in Criminal Matters, developed by the Council of Europe, entered into on April 20,1959, in force June 12,1962.38 It was an important achievement of its time in its recognition of the necessity for specific instruments for cooperation in evidence gathering. However, like all new instruments, it had limitations. Perhaps the most notable in this instance was the Convention was designed to operate amongst states of like legal tradition, the civil law states of Europe, and it therefore did not address perhaps the most significant challenge to effective mutual assistance, bridging the differences between legal systems.
Similarly, within the Commonwealth, in 1986 Law Ministers in Harare, Zimbabwe,39 adopted a scheme for mutual assistance. It is a non - treaty based scheme which depends upon states enacting domestic legislation to permit the rendering of assistance in criminal matters. However, it as well is based on the commonality of systems.
In between the creation of these two multilateral instruments of cooperation, inPidual states began to develop treaties on a bilateral basis, to allow for the provision of assistance and most notably, the provision of assistance between states of different legal traditions. The oft cited example of the first break through instrument is the treaty between the United States and Switzerland which came into force in January 1977.40 Since that time there has developed a network of bilateral instruments between states of similar or different legal tradition. Those agreements are further supplemented by domestic legislation within some states which allows for assistance to be rendered on the basis of reciprocity, designation or administrative arrangement.
Similar to extradition there has also been an increasing development of regional agreements for mutual assistance. Some recent examples include the Inter - American Convention on Mutual Legal Assistance in Criminal Matters41", and the Economic Community of West African States Convention on Mutual Assistance in Criminal Matters.42
Two other significant advancements in the field of mutual assistance came with the adoption by the General Assembly of the United Nations of the Model Treaty on Mutual Assistance43 and the coming into force of the 1988 Drug Convention44 which contains a "stand alone" article on mutual legal assistance. Under this article state parties to the Convention can seek and provide a broad range of assistance in evidence gathering.
The Model Treaty provided an excellent guide for nations wishing to develop mutual assistance treaties and the Convention provided a multilateral instrument for assistance; an instrument which now has over 130 signatory states.
The inclusion of a "stand alone" provision on mutual assistance within the Convention, in addition to its practical effect, also constituted recognition of the integral role mutual assistance plays in combating crime, in this instance drug trafficking. That message has been reinforced with respect to transnational organised crime generally, within the international community in various statements arising from international fora.45
5) Practical issues for prosecutors
The framework of international instruments for the rendering of assistance, while still in need of expansion and improvement, is an impressive one.
However, no matter how complete the network of agreements may be and regardless of how well - crafted the instruments of cooperation are, none of that is of much value, if it is not possible to present a request for assistance and receive evidence in an acceptable form, in an effective and timely fashion.
Unfortunately, in a great number of cases, despite the existence of an applicable instrument, evidence is not forthcoming; it arrives in a form such that it is not useful to requesting authorities; or it is provided so late as to be of little practical value.
The critical problem is lack of or inadequate programs and procedures for effective implementation of mutual assistance programs and the provision of evidence on a practical, case by case, level. Admittedly, significant progress in the effective implementation of mutual assistance obligations the world over can be achieved through state action. Governments must enact the relevant legislation, negotiate the necessary instruments and establish some form of administrative framework, most critically, a Central authority, for the processing of mutual assistance requests and resources to implement requests.
But effective implementation is not limited to legislation and administration. It runs far deeper than that. A country may have an excellent legislative and treaty scheme for mutual assistance and an established administrative process and it still may be virtually impossible to provide effective assistance; because the best designed system is only as good as the people who operate it on a practical level. In many instances, success in mutual assistance is dependent almost entirely on the knowledge and most critically - the flexibility - of the authorities request and, even more importantly, providing the assistance.
It is quite understandable that authorities raised within a particular legal tradition have a natural bias for the approach and practices of that legal tradition. As well, in providing foreign states with access to compulsory process within a given state, there will be, whether by virtue of constitutional or legislative requirements, constraints on what measures are available and in what circumstances.
However, one of the most important goals of mutual assistance is the bridging of differences between legal systems. This goal can be realized only if the authorities entrusted with execution, approach mutual assistance requests with a view to overcoming the differences and not entrenching them.
The governing philosophy for mutual assistance must be to provide the widest scope of assistance possible and to provide that assistance in a useable form for the requesting state. For mutual assistance to succeed, the operative principle must be that requests will be executed in accordance with the law of the requested state and to the extent not prohibited by that law, will be provided in the manner sought by the requesting state. In other words, while authorities in a requested state must always meet the standards prescribed by domestic law, unless the rendering of assistance in the form sought would constitute a violation of that law, it should be provided. If that principle does not govern at the operational level, mutual assistance will fail. This is unquestionably the central challenge that practitioners face each day. The importance of this point is perhaps best illustrated by example.
Generally in common law legal systems, police and prosecutors are responsible for the questioning of witnesses. At the investigative stage, police or, in some systems, prosecutors will gather witness statements. During the trial process, it is the prosecutor and defense counsel who will conduct the examination and cross examination of each witness. While a judge may occasionally ask a question during a trial, by the law of those states, judges do not gather the evidence of witnesses nor conduct examinations before the court. In contrast, many civil law systems have investigating judges who will take witness statements and include or summarize evidence in the preparation of their files or "dossiers".
If an investigating Judge seeks to interview a witness in a common law state, strictly speaking, it would be "inconsistent" with the law of the requested state for that judge to conduct the interview. It would not however be a violation of domestic law, if the judge were allowed to conduct the interview. In this instance, success or failure, depends entirely on whether the authorities in the requested state allow the evidence to be gathered in an appropriate form for the requesting state, even where it is inconsistent with the normal process employed in the requested state.
A similar example arises in the reverse scenario. In a civil law system very often an investigating judge hearing a witness will prepare a summary or "proces verbal" of what the witness said.
In the common law, when a witness is examined and cross - examined before the court his or her evidence must be recorded verbatim. A summary or "proces verbal" is not admissible.
If a request is made by common law authorities to take the evidence of a witness on "commission" in the foreign state and to record the evidence verbatim, once again that process would be inconsistent with the practice of the requested state. However, the foreign authorities would not be violating the law by allowing a verbatim record. Again, it is a question of flexibility and the philosophy employed in the requested state.
The need for flexibility is not limited to authorities called upon to execute a request for assistance. Requesting authorities too must strive to submit materials which will meet the requirements of the requested state and which will be workable and useful to authorities in a state of a different legal tradition. Submitting a request which meets all of the requirements of the domestic law of the requesting state but none in the requested state does little to facilitate the provision of assistance.
While the proper choice in these examples may seem incredibly obvious and simple, in reality, there are a multitude of examples of instances where mutual assistance requests are frustrated because of a rigid adherence by authorities to their own domestic practices. Unless requesting and executing authorities, prosecutors in particular, recognise and employ a flexible approach, mutual assistance will fail.
As in extradition, a great deal of the frustration in mutual assistance flows from the differences between legal systems, with a resulting lack of understanding as to what information must be included in a request for assistance, in what detail and in what form. Clearly, it is not possible to cover in any paper what each system demands by way of information to support a request. However some general recommendations are possible.
When faced with seeking assistance from a foreign state, the obvious "first source" for a prosecutor to consider is any applicable treaty or other instrument which should outline the information to be included in the request. In the absence of a treaty or often in addition to it, a prosecutor will want to consult with the Central authority (if there is one) within his or her own state. And finally, in many instances, only discussions between authorities in the two states will produce adequate information. Once again, for this the existence of Central authorities within the two relevant states will greatly facilitate the transmission of relevant information.
However, in addition to pursuing information on a case specific basis, it is clear that future success is very much dependent on the dissemination of information about legal systems generally and communication and discussion between competent authorities in states the world over. To this end, the IAP provides an excellent opportunity for authorities in various states to discuss, at a general level, their legal systems and the principles applicable to and requirements for, requests for assistance to be effectively executed.
Without attempting to address the substantive requirements of legal systems, which will vary from one state to another, the following are five basic general tips on the content of requests that would appear to be applicable for all states:46
Every legal system has its own terminology. For example, an "affidavit" may have meaning in Canada but not in Switzerland. As a request for assistance is addressed to and intended for a foreign authority, system specific terminology should be avoided. Instead the request should describe what is sought, rather than referring to a term. For example, rather than "affidavit", the request should refer to a statement which is sworn or affirmed to by the person providing it.
While the test that must be met before a compulsory order will issue can vary from state to state, in almost every legal system the relevance of the evidence sought to the investigation or prosecution will have to be established. Every request for assistance therefore should address that issue. i.e. there should be a clear description of why or how the evidence in question is relevant to the investigation or prosecution.
In most legal systems "fishing expeditions" are not permitted. All requests for assistance should be specific as to the assistance sought. For example, if the requesting authorities are seeking bank information they will need to provide an indication, if not of a specific bank account, at least sufficient information for the relevant bank to be identified in the requested state. The type of information needed from those accounts and the time period should also be indicated.
In preparing a request, prosecutors should focus not only on the evidence sought but the form or manner in which the evidence must be provided for it to be admissible at trial. Those requirements as to form and procedure must be set out in detail in the request and be included from the very beginning. For example, if a country requests bank documents, it may be necessary to obtain an accompanying certificate for the documents to be admitted at trial. If that is the case, the certificate should be provided with the request to avoid unnecessary duplication of work in the requested state.
Requests for assistance take time to execute. While urgent situations and emergencies may arise, investigations and prosecutors should strive to submit requests on a timely basis, with reasonable deadlines that take into consideration the resource constraints in a requested state.
Mutual assistance has come a long way in a very short period of time for an instrument of international cooperation. The challenge for the future lies in the effective implementation of the instruments of cooperation which have been developed. The success or failure of mutual assistance rests not only with governments but with competent authorities, such as prosecutors, who seek and render the assistance on a practical level.
IV PURSUING THE PROFITS - COOPERATION IN THE RESTRAINT AND FORFEITURE OF PROCEEDS OF CRIME
It is a 20th century reality that crime is big business. Recent estimates indicate that the illegal drug trade alone is a billion dollar, black market industry. Unfortunately, many criminals involved in lucrative, economic based crime have come to consider prison sentences as simply a necessary cost of doing business.
In our modern world, to effectively combat any economic based crime it is critical to attack that which motivates inPiduals to commit the crime, - profit. To that end, cooperation in tracking, restraining and forfeiting the proceeds of crime has become a major component of international assistance.
While the concept of the state taking "ill gotten gains" away from criminals has been, in some way, reflected in legal systems for many years, the encouragement and development of a large scale, internationally, recognized effort to remove proceeds of crime from criminals is a relatively recent phenomenon.
2) Instruments and methods of cooperation
The most significant milestone for the advancement of cooperation in this field was the negotiation and coming into force of the 1988 Drug Convention.47 For the first time, pursuit of the proceeds of criminal activity was given a "starring" role in an international instrument intended to combat crime. The motive behind the Convention measures which are directed at the restraint and forfeiture of proceeds of crime are well described in the preambular paragraphs to the Convention,
The Convention obligates signatory states to, inter alia, create domestically an offence for "money laundering"48 and, subject to constitutional or other basic concepts of the applicable legal system, to criminalize the knowing acquisition, possession or use of property derived from the convention offences.
In addition and perhaps most significantly, the Convention requires state parties to create domestic mechanisms which would allow for the tracing, restraint (freeze or seize) and confiscation of the proceeds of drug related crime. And, in recognition of the transnational dimension of this criminal activity, state parties also must be able to respond to requests presented by other states, seeking the tracing, restraint and confiscation of the proceeds of drug offences.
The latter requirement is critical because experience clearly demonstrates that sophisticated criminal organizations launder and distribute the proceeds of their activities, through many countries and through a vast array of businesses, institutions and organizations. The reality is that without the assistance of other states, no country can successfully investigate, restrain and confiscate the profits of a sophisticated criminal organisation. It is not enough that each country has its discrete domestic scheme for restraint and confiscation. There must be a developed network for fast and effective international cooperation, which allows for cross border restraint and confiscation. At the same time, that process must respect the rights of inPiduals; those whose property may be improperly restrained and innocent third parties. This area of international cooperation presents perhaps the most significant challenge for police and prosecutors the world over.
The 1988 Drug Convention marked the first recognition internationally that any efforts to pursue the profits of crime, requires the cooperation of states.
Other instruments have followed the adoption of the 1988 Drug Convention. One of the most important is the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
This Convention, which establishes an elaborate scheme for cooperation in tracing restraint and confiscation of proceeds, is of particular note because it is a regime of cooperation which applies to criminal offences generally which generate proceeds of crime. It is not restricted to drug or any other particular type of offence.
While not an actual instrument of cooperation, one final noteworthy international document in the field of asset restraint and forfeiture is the Forty recommendations of the Financial Action Task Force on Money Laundering.
Established by the G7, the Financial Action Task Force on Money Laundering (FATF) is an inter-governmental body whose purpose is the development and promotion of policies to combat money laundering.
The FATF currently consists of 26 countries and two international organizations. Its membership includes the major financial centre countries of Europe, North America and Asia. It is a multi-disciplinary body, which brings together the policy-making power of legal, financial and law enforcement experts. The Recommendations of the task force, were originally drawn up in 1990. In 1996 the forty Recommendations were revised to take into account the experience gained over the six-year period and to reflect the changes which have occurred in the money-laundering problem.
The recommendations address measures to be taken in the legal, financial and administrative spheres and include a section focused on the enhancement of mutual assistance, extradition and other methods of cooperation in money laundering investigations. The recommendations and their adoption and implementation in participant states, have contributed significantly to increased awareness and understanding of the issue of money laundering, as well as improvement in the development of mechanisms for combating the problem.
Because of the various innovative instruments, assistance in the restraint and forfeiture of proceeds of crime, more than any other form of cooperation, is most frequently rendered on the basis of multilateral, as opposed to bilateral, agreement. In the implementation of both the widely accepted 1988 Drug Convention and the European Convention many states have created domestic regimes for restraint and forfeiture which apply to the proceeds of both foreign and domestic offences. That is, proceeds of criminal activity located in a state will be subject to restraint and confiscation even if the underlying or "predicate" offence, through the profits were generated took place elsewhere.
For this reason, often assistance in restraint and forfeiture can be obtained simply by relaying intelligence, information and ultimately requisite evidence about the existence of potential proceeds of crime within another state, through informal police or other channels, for domestic use and action.
In addition, many countries have made assistance with the restraint and forfeiture of proceeds of crime, a component; in some instances a central component, of their mutual assistance treaties. Thus, there also exist bilateral instruments which provide a basis for cooperation between states in the restraint and forfeiture of proceeds of crime.
In many ways while cooperation in "proceeds matters" is the newest form of international cooperation, the network upon which such assistance is rendered is much more complete than any other.
3) Practical issues for prosecutors
At the same time, international cooperation in tracing, restraining and confiscating the proceeds of crime is the area most replete with difficult legal and practical questions and the one which poses the greatest challenge, particularly for prosecutors who must bring these cases before the courts.
As the newest form of international cooperation, it remains a relatively unknown concept even amongst the authorities who may, be called upon to respond to requests for assistance. Many police and prosecutors are simply unfamiliar with and unaccustomed to the restraint and forfeiture of property and assets. This makes the pursuit and rendering of assistance both difficult and time consuming.
What makes this form of assistance incredibly complex is the Persity of schemes; no two states have adopted the same legislative scheme for restraint and forfeiture. There are a wide range of general approaches and each country has a different "twist" to its scheme.
A few examples can illustrate the maze that must be navigated in seeking assistance.
One central distinction is whether the forfeiture of proceeds of crime can be accomplished through civil or administrative process or is inextricably tied to the criminal process. Canada for example has a criminal forfeiture process where criminal charges underlie an application for a forfeiture order.49 In contrast, in the United States, there are a range of forfeiture options from non judicial (summary and administrative) to civil and criminal process.50
Another important distinction is whether forfeiture orders are directed to specific assets or are "value" based or both. For example, in Australia51 a court can order the forfeiture of specific property which is determined to be "tainted" property in relation to the offence or impose a general "pecuniary" penalty which represents the benefits attained by the person from the commission of the offence. In Canada, the court can order the confiscation of specific property found to constitute the proceeds of crime or a fine in Iieu if the property is for various reasons no longer available, but the concept of a "pecuniary penalty" does not exist.52
In addition to the variation in domestic systems, countries also take different approaches to foreign requests for assistance with restraint and forfeiture.
In some states there is a separate scheme for the enforcement of foreign requests for restraint and forfeiture e.g. Australia.53 In other countries domestic process is used to respond to foreign requests e.g. Canada. Other states have a blended approach e.g. the United States,54 which has a similar process for domestic and foreign forfeiture proceedings but with evidentiary rules that allow for enhanced use of foreign evidence, such as certificates of conviction.
The proliferation of approaches to the restraint and forfeiture of proceeds of crime make this growing area of cooperation the most complex. Because of those complexities, cooperation in the restraint and forfeiture of proceeds, in and of itself, merits consideration as a single topic. Here, it is only possible and of itself, merits consideration as a single topic. Here, it is only possible to touch on a few of the pressing current issues in international cooperation in the restraint and forfeiture of proceeds of crime; particularly those which are of most relevance to prosecutors.
The 1988 Drug Convention must be recognised as one of the most important international instruments in the advancement of cooperation 'M criminal matters. However it has had a few unintended side effects.
Perhaps the most notable is that many, states moved quickly to enact domestic proceeds legislation to comply with the obligations of the convention, but in doing so, the legislation was directed only to the restraint and forfeiture of proceeds of drug offences.
Unfortunately, many criminals are multi-disciplinary by nature. They easily fluctuate between trafficking in drugs, carrying out fraudulent schemes and trafficking in other substances from aims to cigarettes. Their only goal is profit and the path to it will vary. This is particularly the case with sophisticated criminal organisations. Proceeds legislation which is directed solely to drug offences, while certainly an important achievement, can be of limited effectiveness in the face of multi - faceted criminal organisations.
Thus, prosecutors are often not adequately armed to attack the varied proceeds of a criminal organisation. A prosecutor will seek to restrain the proceeds of a criminal organisation and face legislation either domestically or in a foreign state that will only allow for action to be taken in relation to drug proceeds. This will be a particular frustration when domestic legislation in the requesting state has a multitude of predicate offences and thus the investigation conducted has not focused on establishing the connection to inPidual types of criminal activity such as drug trafficking. When the police and prosecutors then seek restraint of assets in a foreign state, with legislation limited to drug trafficking, it will be particularly difficult to obtain any assistance, even though a good portion of the profits may have been generated through drug offences.
While the long range solution to this issue is a legislative one, in the interim, it falls to prosecutors to work together to try and find innovative solutions, such as to development of statutes which include property or funds which flow from drugs and other demonstrably illegal activity.
The second problem parallels that encountered in extradition and mutual assistance but is probably most acute in relation to proceeds of crime, given the myriad of approaches in domestic legislation. That of course is how to provide the foreign state with sufficient information, in an acceptable form, to allow for restraint and ultimately forfeiture.
In addition to the broader conceptual differences in approaches outlined above, prosecutors seeking assistance face a multitude of procedural variations as well. In some legal systems, before a state will seek the restraint of assets, it will require the requesting state to produce evidence sufficient to establish a direct link between the alleged or proven underlying offence and the property in question. Other systems will accept a description of that evidence and still others a simple summary of the connection, without reference to available evidence.
Still other legal systems do not require a direct link between an offence and the impugned property. All that may be required is a description of the alleged offence and the connection of the person to the impugned property, with or without an indication that the person does not appear to have any source of legitimate income.
The variations are endless as is the frustration for police and prosecutors.
Once again, success can only be achieved if prosecutors can effectively communicate information about their standards and procedures and can guide each other through the maze.
Unquestionably, pursuit of proceeds of crime is an area of international cooperation which is most impacted by the startling advances in technology in our modern times. We live in an age where the transfer of millions of dollars, across national borders, can occur in an instant. Traditional domestic investigative techniques, let alone those used in the context of international cooperation, cannot begin to adequately address tracking and gathering evidence of modern financial and economic interaction.
Unquestionably, the challenge for the future is to develop a system of cooperation amongst states which, at a practical level, will permit investigators to track and prosecutors to evidence, the flow of funds in the electronic world of the future.
There can be no illusions about international cooperation in criminal matters. The criminals are far more skilled in using national borders to protect themselves and the evidence and profits of their crime from detection than law enforcement is in overcoming the barriers of sovereignty, in pursuing them.
But if one considers where we have been and where we have come in cooperation matters in the last fifty years, there is much reason to be optimistic. There should be no doubt, that with the continued efforts of the world community, its effectiveness in combating transnational crime will continue to increase, as will the security of our global village.
1 This text has been written in 1998 before the entry in force of the 2000 Mutual Legal Assistance Act reform. Ms. Prost was then Senior Counsel, Director, International Assistance group, Department of Justice, Canada.
2 United States of America v. Controni (1989) 48 C.C.C. (3d) 193 at 215
3 A.W. LaForest, Extradition to and from Canada, 1991
4 M Cherif Bassioun, International Extradition, United States Law and Practice
5 Supra ftnote. 4 at p. 3
6 See for example: Recommendations of the P8 Senior Experts Working Group on combating Transnational Organised Crime; Report of the Intergovernmental Expert Group on Extradition, Siracusa, 10-13 December 1996 as presented to the Commission on Crime Prevention and Criminal Justice, Sixth Session, Vienna, 28 April -- 9 May 1997; Resolution of the Ninth Congress on the Prevention of Crime and the Treatment of Offenders A/Conf.169/16, para 1)
7 Shearer, I.A., Extradition in International Law, Manchester University Press, 1971, at p. 24.
8 Supra ftnore. 7 at pp. 2835.
9 Europ. T.S. No. 24, December 12, 1957: Second Additional Protocol, Mar. 17, 1978, Europ. T.S. No. 98; First Additional Protocol, Oct. 15, Europ. T.S. 86.
10 Scheme Relating to the Rendition of Fugitive Offenders within the Commonwealth, 1966, Cmnd 3008, at 1
11 See An Act for the Better Apprehension of Certain Offenders, 1843, 6 & 7 Vict. ch. 34
12 See Fugitive Offenders Act, 1881, 44 & 45 Vict. ch. 69
13 Commonwealth Schemes on Mutual Assistance in the Administration of Justice, June 1991, Commonwealth Secretariat.
14 Supra ftnote 4, at pp. 14-15; Supra ftnote 7, at pp.61-62
15 See Bart de Schutter, International Criminal Law in Evolution: Mutual Assistance in Criminal Matters Between the Benelux Countries, 14 Neth. J. Int'l Law. 382, 382-410
16 Supra ftnote 4, at p.12
17 Supra ftnote 4, at p.15
18 Supra ftnote 4, at p.15
19 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, 12 August 1949, 6 U S T 3114. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 6 U S T 3217. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 U S T 3316. Geneva Convention Relation to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 U S T 3516
20 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December, 1948 78 U N T S 277.
21 16 December 1970
22 See example: Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, 14 December 1973, 13 I.L.M 41 (1974), International Convention Against the Taking of Hostages, 18 December 1979, 18 I.L.M. 1456 (1979); Convention Against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 December 1984, 23 I.L.M. 1027 (1984)
23 19 December 1988, 28 I.L.M. 493 (1989)
24 RSC 1985, c.E-23 as amended; RSC 1985, c F-32 a amended
25 Alun Jones, Jones on Extradition, London, Sweet and Maxwell, 1995, Ch. 4
26 Report of the Inter-governmental Expert Group on Extradition, Siracusa, 10-13 December 1996 as presented to the Commission on Crime Prevention and Criminal Justice, Sixth Session, Vienna, 28 April -- 9 May 1977
27 UNGA res 45.116
28 International Review of Criminal Policy, Nos. 45 and 46.
29 See for example article 2 of the United Nations Model Treaty on Extradition
30 See for example Australia and the United Kingdom
31 See United States
32 See for example Article 4 (a) of the United Nations Model Treaty on Extradition
33 Supra ftnote 20 para 19
34 e.g. The temporary transfer of a person for trial only
35 See Supra ftnote 20; Recommendations of the P8 Senior Experts Working Group on combating Transnational Organised Crime.
36 Often referred to as Mutual Legal Assistance.
37 In some countries, mutual assistance is provided for on the basis of domestic legislation which is either applied generally to all states or to designated states on the basis of reciprocity. See for example UK, Switzerland some states also provide for case by case assistance through administrative arrangement. See Canada
38 European treaty Series No. 30
39 Scheme Relating to Mutual Assistance in Criminal Matters within the Commonwealth, Commonwealth Secretariat, London, LMN (86) 13
40 Lionel Frei and Stefan Freschal, Origins and application of the United States -- Switzerland Treaty on Mutual Assistance in Criminal Matters, Harvard International Law Journal 31 (1990 @ 77-79
41 Canada Gazette, Part I, p. 2483 (Vol. 130, No. 35)
42 Signed July, 1992
43 General Assembly resolution 45/117, UN GAOR 45th Sess., Supp No. 49A at 215
44 Supra ftnote 23
45 See Naples Political Declaration and Global Action Plan" adopted at the World Ministerial Conference on Organised Transnational Crime, November 1994; Report of the Oxford Conference on Mutual Legal Assistance, September 1994, Christ Church, Oxford; Recommendations of the P8 Senior Experts Working Group on combating Transnational Organised Crime.
46 See also United Nations Manual for the Model Treaty on Mutual Assistance in Criminal Matters, International Review of Criminal Policy, Nos. 45 and 46, p, 41
47 Supra ftnote 23.
48 The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with sub-paragraph (a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions.
49 Criminal Code, RSC Ch 46. ss 462.3 -- 462.5
50 Asset Forfeiture Manual, U S Department of Justice
51 Proceeds of Crime Act, 1987
52 Supra ftnote 49
53 Supra ftnote 51
54 Supra ftnote 50